Attorney Conduct, Ethics, and Professionalism

Transcription

1 Attorney Conduct, Ethics, and Professionalism Faculty: Kyle Robinson, Esq. Introduction History 1983 ABA Model Code of Ethics Model Rules of Professional Conduct ABA RULES OF PROFESSIONAL CONDUCT blications/model_rules_of_professional_conduct/model_rules_of_pr ofessional_conduct_table_of_contents.html Lawyers Preamble and scope Overview As an officer of the court, a lawyer not only represents clients but has a special responsibility for the quality of justice. Rule 8.4: Misconduct Common sense rule. This is what unprofessional is all about. Rule overview of what is professional misconduct for a lawyer. (d) engage in conduct that is prejudicial to the administration of justice; Some states use this as a broad discrimination rule Other States Rule 8.4 Comparison California has not adopted the ABA rules. Out for comment. They have a specific ethics rule that deals

2 with this Rhode Island added a section that included harmful or discriminatory treatment litigants, jurors, witnesses, lawyers, and others. Illinois add paragraphs New Jersey 8.4(g): Added a Section specifically deals with this. Made an exception for employment discrimination among attorney people in the court and beyond because NJ has an entire body of law on employment discrimination. Commentary states it was intended to be construed broadly. North Carolina 8.4(d): Comments state it should be read broadly. Including conduct outside the scope of judicial proceedings Rule 1.8: Conflicts of Interest: Current Clients: Specific Rules j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client lawyer relationship commenced. INVESTIGATIONS Social media implications and how far can we go?. Philadelphia, PA ruling: You can ask a client to friend someone else in advance of litigation to collect info, provided they tell them real reason for the friend request. Cases: In Re Palter Colorado case and Law and Order Episode. Assistant DA on site where a known criminal had hostages. Assistant DA lied to save hostage and was found in violation Attorney directing others/assistant to be deceitful In Re Gatti Attorney being deceitful.

3 Misrepresented himself as a doctor Advisory boards looking at exceptions to this rule. ATTORNEY MISREPRESENTATION 8.1: Bar Admission and Disciplinary Matters Only rule Non Attorney before they become attorneys. Character Requirements Good moral character In Re DeBartolo An applicant to the bar must show that he possesses the good moral character and general fitness necessary for the practice of law. Lied on bar application about residence Incurred over 400 parking tickets Represented himself as a police office Residency Requirements Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 105 S. Ct. 1272, 84 L.Ed2d 205 (1985) Constitution s violation of privileges and immunities clause for New Hampshire Supreme Court refusal to swear in a Vermont resident who had passed the state s bar examination. EXCEPTION: if the state can demonstrate substantial reasons for discriminating against nonresidents and can show that the difference in treatment bears a close relation to those reasons. Supreme Court of Virginia v. Friedman, 487 U.S. 59, 108 S. Ct. 2260, 101 L.Ed.2d 56

4 (1988) Court struck down a Virginia rule that let permanent Virginia residents licensed out of state waive into the Virginia bar, but required non Virginia residents to take the state bar examination. Rule: violated the privileges and immunities clause because it burdened the right to practice law by discriminating amount otherwise equalling qualified applicants. Barnard v. Thorstenn, 489 U.S. 546, 109 S. Ct. 1294, 103 L.Ed.2d 559 (1989) Discrimination against non residents. Virgin Islands bar s one year residency requirements. 5 Justifications for residency requirement The Virgin Islands geographic isolation and communications difficulties would make it difficult for non residents to attend court proceedings on short notice delays in accommodating nonresident lawyers schedules would increase the courts caseloads delays in publication and lack of access to local statutory and case law would adversely affect nonresident lawyers competence the bar does not have adequate resources to supervise a nationwide bar membership nonresident bar members would

5 be unable to take on a fair share of indigent criminal defense work OPINION by Justice Kennedy: found none of the reasons substantial enough to justify excluding nonresidents from the Virgin Islands bar. Courts require equality in treatment between in state and out of state applicants to the bar. 7.1: Communication regarding lawyers services. Misleading/Advertising Zauderer v. Office of Disciplinary Counsel, 471 U.S 626 (1985) Newspaper ad that targeted a narrow audience Found: narrowly targeted newspaper ads are permissible. Attorney cannot be disciplined for planning an ad that concerned a specific legal problem and that was designed to lure a narrow group of potential clients. Can t mislead! 4.1: Truthfulness in Statements to others 3.3: Candor Towards Tribunal Narrative Approach Testimony Nix v. Whiteside Murder of a drug dealer Issue: Whether defendant was deprived of his right to effective counsel when his attorney told him that if he testified to a story the counsel believed was false, the counsel would try to withdraw and would tell the judge the story was false.

6 HOLDING AND LAW: Defendant was not deprived effective assistance of counsel because attorneys conduct fell with the wide range of acceptable responses to propose client perjury Ineffective assistance of counsel requires: serious error by the lawyer AND prejudice to the defendant. A criminal defense attorney must be loyal to the client, but only within the bounds of lawful conduct. 8.4: Misconduct (Broad Catchall for Misrepresentations) Officer of the Legal System 2.4: Lawyer Serving as Arbitrator, Mediator, or Third Party Neutral 2.1: Trusted Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations, such as moral, economic, social, and political factors, that may be relevant to the client s situation. *This rule Encourages Lawyers to give advice not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client s situation (AREA FOR CONCERN) 5.7: Responsibilities Regarding Law Related Services Social Media Concerns New ways of violation. Vine, snapchat, instagram, facebook, twitter.

7 Careful of what you post of social media Advertising and investigations Are you able to solicit information deceitfully via social media? Hard for the rules to keep up because technology is changing. 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Rule 1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. Comment 1: A lawyer is not bound to press for every advantage that might be realized for a client. Supervision Rules: 5.1 Rule 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers (STATES VARY ON THIS RULE) *Vicarious Liability Nonlawyer subordinate Rule 5.2: Responsibilities of a Subordinate Lawyer *Take notes on what happened and make sure you do your due diligence to document it. Rule 5.3: Responsibilities Regarding Nonlawyer Assistants Rule 8.3: Reporting Professional Misconduct In Re Holmay Supreme Court of Minnesota, 1987.

8 399 N.W.2d 564 Attorney forged his client's signature on documents which he falsely notarized. He submitted to the court and served on the opposing party. Lawyer must make fair disclosure of the basis on which the fees will be based Advertising and Solicitation/Information about Legal Services Rule 7.1: Communications Concerning A Lawyer s Services ( *CONTENT OF THE MESSAGE) Rule 7.2: Advertising and Recommendation of Professional Employment (*WHERE TO ADVERTISE) *REASON: THE PUBLIC HAS THE RIGHT TO KNOW LEGAL SERVICES AVAILABLE TO THEM. Rule 7.3: Direct Contact with Prospective Clients (*HOW TO SOLICIT) Rule 1.14: Client With Diminished Capacity Rule 1.4 Communication *Inform of impending departure of lawyer must notify clients. Graubard Mollen v. Moskovits, 86 N.Y.2d 112, 629 N.Y.S.2d 1009, 653 N.E.2d 1179 (1995) Rule 1.5 Fees and Expenses Billable Hours Contingent Fees Domestic case (comment 6) Does not prohibit contingent fee for legal work done to collect

9 unpaid money due under an alimony or support decree or a property settlement. Rule 1.6 Confidentiality Of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (*Implied authority concern)